Recent Articles of Interest

From SSRN:

• Jeremy Rovinsky, Don’t Have a Cow, Flanders: Guidance for the European Court of Justice as it Considers the Flemish Parliament’s Ban on Ritual Slaughter, (University of Detroit Mercy Law Review, Vol. 90, No. 180, Forthcoming).
• Richard Adams, Conscience and Coercion: Justice and the Defence Act, (Adelaide Law Review, 40:2, pp. 427 - 446, 2019).
• David John Harvey, Dangerous Speech - Some Legislative Proposals, (April 20, 2019).
• Aminu Yakubu, Haruna Yawale, Abdulbar Yakubui Isa & Muhammad Salihu Abubakar, Legal and Illegal Earning in Islam: A Literature Review (April 25, 2019).

State Department Designates Religious Freedom Violators

In a Dec. 20 press release, the U.S. State Department announced it designations for this year of countries which are the worst violators of religious freedom:

On December 18, 2019, the Department of State re-designated Burma, China, Eritrea, Iran, North Korea, Pakistan, Saudi Arabia, Tajikistan, and Turkmenistan as Countries of Particular Concern under the International Religious Freedom Act of 1998 for having engaged in or tolerated “systematic, ongoing, [and] egregious violations of religious freedom.”  The Department renewed the placement of Comoros, Russia, and Uzbekistan on a Special Watch List (SWL) for governments that have engaged in or tolerated “severe violations of religious freedom,” and added Cuba, Nicaragua, Nigeria, and Sudan to this list.  Sudan was moved to the SWL due to significant steps taken by the civilian-led transitional government to address the previous regime’s “systematic, ongoing, and egregious violations of religious freedom.”  Finally, we designated al-Nusra Front, al-Qa’ida in the Arabian Peninsula, al-Qa’ida, al-Shabab, Boko Haram, the Houthis, ISIS, ISIS-Khorasan, and the Taliban as Entities of Particular Concern.

The U.S. Commission on International Religious Freedom issued a press release welcoming the action and reiterating its recommendations.

Montenegro Passes Controversial Religion Law

Reuters reports that early today the Parliament of Montenegro passed a controversial law on religious communities:

Under the law, religious communities in the tiny Adriatic state would need to prove property ownership from before 1918, when predominantly Orthodox Christian Montenegro joined the Kingdom of Serbs, Croats and Slovenes, the predecessor of the now-defunct Yugoslavia.

The pro-Serb Democratic Front (DF) and other critics of the legislation say it is an attempt to promote the small Montenegrin Orthodox Church, which is not recognised by other major churches, at the expense of the Serbian Orthodox Church, the dominant church in the country of 620,000 people.

Suit Over Unification Church Leadership Is Dismissed

In Hyung Jin "Sean" Moon v. Hak Ja Han Moon, (SD NY, Dec. 19, 2019), a New York federal district court applied the ecclesiastical abstention doctrine to dismiss a suit over who is the rightful leader of the Unification Church. The leadership struggle was between the wife and the son of Unification Church founder Rev. Sun Myung Moon. Summarizing its holding, the court said:

[N]otwithstanding plaintiff's efforts to cast this proceeding as a "classic corporate dispute" resolvable by reference to neutral principles of law,... this matter is, at bottom, the latest chapter in a protracted controversy over who should replace the late Rev. Moon as leader of the Unification Church. Because this Court may not, consistent with the First Amendment, intervene in that dispute, plaintiff's complaint must be dismissed in its entirety for lack of subject matter jurisdiction.

Suit Filed Against Synagogue Picketers

A lawsuit was filed last week in a Michigan federal district court against protesters who, every Saturday for the last 16 years, have picketed an Ann Arbor synagogue with anti-Israel and anti-Jewish signs. The 85-page complaint (full text) in Gerber v. Herskovitz, (ED MI, filed 12/19/2019) contends in part:

The conduct of the protesters is infringing on the 1st Amendment right of the congregants to exercise their freedom of religion without being harassed and insulted by the protesters. The City, by its failure to enforce its own Code provisions to curtail the protesters' conduct, is aiding and abetting the protesters harassment of the congregants, thereby making the protesters state actors under 42 U.S.C. §1983 and the protesters and the City co-conspirators under §§ 42 U.S.C. 1983 and 1985(3)....

The 1st Amendment right of free speech does not entitle a speaker to use that right repeatedly as a bludgeon, for weeks and years at a time, in the same location, rather than as a means of legitimate communication in an effort to convey information and persuade others to the speaker's point of view.

M Live reports on the lawsuit. [Thanks to Tom Rutledge for the lead.]

Top 10 Religious Liberty and Church State Developments of 2019

Each year in December, I attempt to pick the most important church-state and religious liberty developments of the past year-- including developments internationally in the mix.  My choices are based on the importance of the pick to law or policy, regardless of whether the development has garnered significant media attention. This year has been a particularly active one, and 2020 promises to be even more eventful.  The selection of top stories obviously involves a good deal of subjective judgment, and I welcome e-mail comment from those who disagree with my choices.  So here are my Top Ten picks as another year comes to an end:

1. The ongoing battle over abortion rights, including the Supreme Court's action on Indiana's abortion law in Box v. Planned Parenthood, and Justice Thomas opinion focusing on abortion as eugenics; Supreme Court's granting of certiorari on Louisiana's abortion law; increasingly restrictive enactments by various states; and challenges to new HHS health care conscience rules.
   
2. Supreme Court's decision in American Legion v. American Humanist Society clarifying when religious-themed monuments on public property may remain.
   
3. Controversies over transgender rights, including Supreme Court's grant of review in cases on Title VII protections for LGBT employees, and DOD's amended policy on transgender service in the military.
   
4. Growth of anti-Semitism and governmental efforts to combat it, including controversial interpretation of Title VI.
   
5. Litigation and rule-making over whether adoption and foster care agencies receiving government funding can refuse to place children with same-sex couples.
   
6. Elimination of religious exemptions to vaccination requirements in wake of measles outbreaks, especially in New York.
   
7.  Supreme Court weighs in on inmates' access to chaplains during execution.
   
8. Extensions of statutes of limitations lead to flood of clergy abuse cases.
   
9. 7th Circuit upholds tax code's parsonage allowance.
   
10. India's courts and Parliament make major rulings that infringe on religious autonomy: Hindu Marriage Act covers transgender marriage; Parliament outlaws triple talaq; court bans animal sacrifice; power of ecclesiastical courts reduced; disputed holy site awarded to Hindus.

For other opinions on 2019's top stories, see the lists from Don Byrd at BJC, and from from the Religion News Association.

President Sends Christmas Greetings

The White House today posted President Trump's Message on Christmas. (full text).  He said in part:

While the challenges that face our country are great, the bonds that unite us as Americans are much stronger.  Together, we must strive to foster a culture of deeper understanding and respect—traits that exemplify the teachings of Christ.

The White House also posted the transcript of the President's  Video Teleconference With Members of the Military, extending Christmas and New Years greetings to them.

Cuomo Vetoes Expansion of Federal Judges Who Can Officiate At Weddings

On Dec. 20, that New York Gov. Andrew Cuomo vetoed S6330 which would have expanded the federal judges who can officiate at marriage ceremonies in New York.  Currently only federal judges sitting in New York districts or on the 2nd Circuit can officiate. The vetoed bill would have expanded this to all federal judges. According to yesterday's New York Times, Cuomo said in his veto message:

I cannot in good conscience support legislation that would authorize such actions by federal judges who are appointed by this federal administration. President Trump does not embody who we are as New Yorkers.

President Trump Issues Hanukkah Greetings

On Sunday, President Trump issued a Hanukkah message (full text) sending greetings from himself and Melania.  He said in part:

Today, the relationship between the United States and Israel, one of our most cherished allies and friends, is stronger than ever.  We will continue to stand with the Jewish people in defending the God-given right to worship freely and openly.

New HHS Obamacare Rule Requires Separate Bill For Abortion Services

The Department of Health and Human Services last week issued a group of rules (full text) on oversight of state Obamacare exchanges.  One portion of the new rules changes the billing requirements for health insurance policies that cover abortion services. The Affordable Care Act requires a separate payment by the policyholder for the amount of the premium that covers abortions in order to avoid public funds being used to pay for abortions.  The new rules sharpen that requirement.  As explained in the HHS Fact Sheet on the new rules, health plan issuers will now be required to:

(1) send an entirely separate monthly bill to the policy holder for only the portion of premium attributable to coverage of certain abortion services, and (2) instruct the policy holder to pay the portion of their premium attributable to coverage of certain abortion services in a separate transaction....  QHP issuers sending paper bills will be permitted to send the separate paper bill in the same mailing as the separate bill for the rest of the enrollee’s premium. QHP issuers sending bills electronically will be required to send the separate bill in a separate email or electronic communication.... However, if the policy holder fails to pay the separate bill in a separate transaction as instructed by the issuer, the issuer may not terminate the policy holder’s coverage on this basis, provided the amount due is otherwise paid.

Appellate Court Narrows Ruling Allowing Clearing Of Homeless Encampments

In State of Ohio ex rel. New Prospect Baptist Church v, Rulehlman (OH App., Dec. 20, 2019), an Ohio state appellate court, narrowed an injunction previously issued by a trial court.  The city of Cincinnati had allowed homeless encampments to be created.  In a suit against the city, it was alleged that these presented a hazard to health and safety and constituted a nuisance. Agreeing with that contention, the trial court held that city and county law enforcement authorities could to clear homeless encampments throughout the city and county.  New Prospect Baptist Church, which was not a party to the trial court action, sued to prevent enforcement of the injunction against its use of its 4-acre site in the city as a refuge for the homeless. The appellate court issued a writ of prohibition requiring the trial court to narrow its injunction. The appeals court said in part:

[The trial judge's] permanent injunction is unauthorized by law to the extent that respondent seeks to enjoin actions by private nonparties, not found to be aiding or abetting a named defendant, within the city limits of Cincinnati, and by any entity outside the city limits of Cincinnati. Respondent’s orders imposing additional health and safety conditions on entities like New Prospect are similarly unauthorized by law.

City Beat, reports on the decision.

Ukrainian Region Bans Baptist Books, Including Gospel of John

In the Luhansk region of Ukraine, pro-Russian rebels have proclaimed the Luhansk People's Republic.  It is not recognized internationally, Forum18 now reports that a government decision on November 26 banned 12 Baptist books as "extremist." The Luhansk Religion Law requires state approval for any church to operate, and prohibits churches not affiliated with the Moscow Orthodox Patriarchate from applying for permission. The newly banned books include the Gospels of John, the Baptist "Songs of Revival", the Baptist magazine "Herald of Truth" and several children's books.  The text of the government decision banning the books has not been published and the government says that it is a "secret document for official use and for limited distribution." The banned Gospels of John are included in the Russian Synodal translation of the Bible.

Catholic Agency Charges County With Retaliation

Suit was filed in a Michigan federal district court last week by St. Vincent Catholic Charities of Ingham County, Michigan challenging the county's refusal to renew a grant for services to refugees,  The complaint (full text) in St. Vincent Catholic Charities v. Ingham County Board of Commissioners, (WD MI, filed 12/16/2019) contends that the county's action was in retaliation for a lawsuit by St Vincent's challenging a state requirement that Catholic adoption and foster care agencies place children with same-sex couples, (See prior posting.)  The current lawsuit claims that the county's action amounts to unconstitutional retaliation, and violates its free speech and free exercise rights. Detroit News reports on the lawsuit.

Recent Articles of Interest

From SSRN:

• Jason Scott Palmer, Emotional Intelligence and Homophobia, (Wake Forest Law Review, Vol. 54, Forthcoming).
• Nathan S. Chapman, Forgotten Federal-Missionary Partnerships: New Light on the Establishment Clause . (December 2, 2019).
• Thomas Burrell, The Bill of Rights before the Civil War: State Sovereignty, Strict Construction, and the Presumption of Constitutionality, (Forthcoming, 14 Charleston Law Review).
• Katherine Shaw, Reva B. Siegel & Melissa Murray, Introduction: Reproductive Rights and Justice Stories, (Forthcoming, Reproductive Rights and Justice Stories).
• Seth Barrett Tillman, A Religious Test in America?: New Sources on the 1809 Motion to Vacate Jacob Henry's North Carolina State Legislative Seat, (November 25, 2019).
• Fred Smith, Jr., The Constitution After Death, (November 28, 2019).

From SSRN (Religious Law):

• Levi Cooper, Halakhah: Studying Hasidism - Sources, Methods, Perspectives, (Studying Hasidism: Sources, Methods, Perspectives, ed. Marcin Wodziński (New Brunswick: Rutgers University Press, 2019), 36-59).
• Muhammad Farooq, Walayah (Guardianship) and Kafa’a (Equality) in Muslim Marriage Verses the Woman’s Consent, (December 3, 2019).
• Md Tasnimul Hassan, Islamic Jurisprudence: Apropos to the Indian Legal System, (November 15, 2019).

From SSRN (Non-US Law):

• Mario Ricca, Children in Tatters Across the Earth: Intercountry Adoptions, Intercultural Discriminations, (Calumet - Intercultural Law and Humanities Review, 2019, 9: 62-104).
• Oonagh B. Breen & Patricia Quinn, Philanthropic Giving in Ireland: A Scoping Project, (UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 13/2019).

Free Exercise Challenge To Vermont's Dual Enrollment Program Moves Ahead

In A.M. v. French, (D VT, Dec. 29, 2019), a Vermont federal district court refused to dismiss plaintiffs' claim that Vermont's administration of its Dual Enrollment Program for high school students violates their right to free exercise of religion.  Vermont pays tuition for high school students to take a limited number of courses at colleges.  While public school, home schooled and private non-sectarian school students may participate in the program, students at religious high schools are not eligible. The court held in part:

Because Plaintiffs have plausibly alleged that the DEP Provision is not neutral and generally applicable, the burden shifts to Defendant to prove that the State's enforcement of the DEP Provision withstands strict scrutiny....

The State's intent appears to be ... the avoidance of using public fundes to subsidize religious worship. A state's "policy preference for skating as far as possible from religious establishment concerns" is not a state interest of the highest order because "achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution ... is limited by the Free Exercise Clause." Trinity Lutheran, 137 S. Ct. at 2024....

The court also rejected as adequate other justifications offered by the state for the exclusion of religious school students. (See prior related posting.)

2nd Circuit: Rabbinical College Prevails In Part of Its Zoning Law Challenge

In Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, (2d Cir., Dec. 29, 2019), the U.S. 2nd Circuit Court of Appeals in a 104-page opinion affirmed in part the judgment in favor of those supporting construction of a rabbinical school ("TRC") in a New York village.  The court found that plaintiffs had standing to bring their equal protection claim. It summarized its holding:

TRC and future students and faculty (collectively, “Tartikov”) filed this action against the Village and its board of trustees seeking to declare unconstitutional the two amendments enacted after its plans became known. In addition, it challenged two other amendments that had been passed earlier. After a bench trial, the district court found that all four zoning law amendments were tainted by religious animus, enjoined their enforcement, and entered a broad injunction sweeping away or modifying for these plaintiffs New York State and local laws that otherwise would apply. The Village challenges the decision below. Its central contention is that the findings of religious animus were clearly erroneous. Tartikov cross appeals from a number of pretrialrulings that limited the scope of its claims.

After careful consideration of the extensive record, we decline to overturn the district court’s findings that religious animus motivated the two zoning amendments passed after the plaintiffs’ wishes became known and thus affirm the injunction barring their enforcement. But we respectfully conclude that there was insufficient evidence to support such a finding as to either of the two earlier zoning amendments and therefore reverse that portion of the judgment. We conclude also that the injunctive relief went further than was appropriate and modify those aspects of the judgment as well. We affirm as to the cross-appeal.

USCIRF Reauthorized By Congress

Congress yesterday gave final passage to HR1865, Further Consolidated Appropriations Act, 2020 (full text). Title VIII of the Act reauthorizes the United States Commission on International Religious Freedom for three more years.  The reauthorization bill makes a number of other changes to USCIRF's operations, including:

(1) requiring election of a Chair and Vice Chair at the first meeting of the Commission after May 30 each year, and requiring that they be of different political parties, with chair and vice chair's party rotated each year.

(2) USCIRF is to track the implementation of its recommendations and the effectiveness of such implementation.

(3) Commissioners invited to speak on behalf of USCIRF must notify other Commissioners of the invitation and must reflect Commission views in their remarks. Commissioners who are speaking in their private capacities must make this clear.

(4) If the government makes a payment to settle a harassment claim against a Commission member, the member shall be removed from the Commission.

Separately, on Dec. 18, the Senate approved the appointment of Rabbi Sharon A. Kleinbaum as a USCIRF commissioner.

Settlement Reached In Suit Over Homeless Shelter

A settlement has been reached in the RLUIPA lawsuit filed last month (see prior posting) by the Shawnee Mission Unitarian Universalist Church against the city of Lenexa, Kansas over denial of zoning approval for an overnight winter homeless shelter. According to a press release from the church's law firm, the settlement agreement allows the shelter to operate from Dec. 13 to April 1, with various conditions.  In addition the city has agreed to work with the Church to produce an ordinance within the next 3 years to allow homeless ministries in city.

New Law & Religion Bibliography

The AALS Section on Law and Religion has issued its 2019 Newsletter which includes a 17-page Law and Religion bibliography. Access the full Newsletter here.

British Court Says Sikh Challenge To Census Proposal Is Premature

In Gill, R (on the application of) v UK Statistics Authority, (EWHC, Dec. 12, 2019), a High Court judge in England dismissed as premature a challenge to a proposal by the UK Statistics Authority not to include a Sikh ethnic group tick box response in the 2021 census. Under the proposal there would be a specific "Sikh" response under "Religion", but those wishing to list themselves as Sikh under ethnicity would need to check the "Other, specify" box. The court agreed with the government's claim, which the court described as follows:

[T]his claim is a pre-emptive challenge to the exercise of the Queen's powers ... before the Minister has made a final decision on the form of the census questionnaire, or laid the draft delegated legislation before Parliament, and before Parliament and the Queen in Council have had an opportunity to consider it. The Defendant submits that the claim is premature, and in breach of Parliamentary privilege, as a declaration in the terms sought would not respect the separation of powers between the legislature and the judiciary.

Law & Religion UK has more on the decision.

Another Ruling On Business Refusal To Serve Same-Sex Weddings

In Country Mills Farms, LLC v. City of East Lansing, (WD MI, Dec. 18, 2019), a Michigan federal district court refused to grant summary judgment to either side on most of plaintiff's claims growing out of plaintiff's refusal rent his farm venue for same-sex wedding ceremonies. That refusal led to plaintiff being excluded from participating in the city's farmer's market, The court summarized:

Plaintiffs used Facebook to announce both their religious beliefs and their business practices. The City reacted to the Facebook post, culminating in the denial of Country Mill’s application to participate in the East Lansing Farm’s Market. The parties disagree whether City’s actions were because of Plaintiffs’ statement about their religious beliefs or whether the City’s actions were because of Plaintiffs’ statement about their business practices.  Because the record contains evidence from which the finder of fact could conclude that the City reacted to Plaintiffs’ statements about their religious beliefs, the cross motions for summary judgment must be denied for many of the claims. The trier of fact must decide what the City’s motivation was.

The court, however, did hold that a portion of the city's non-discrimination ordinance is overbroad.  The court also dealt at length with plaintiff's free exercise claims. In part, the court rejected  plaintiff's argument that the Supreme Court's Trinity Lutheran decision precludes the city from denying him a public benefit because of his religious belief, saying: "the Trinity Lutheran opinion does not clearly extend beyond religious institutions "

Supreme Court Grants Cert. In 2 Ministerial Exception Cases

The U.S, Supreme Court today granted review in two cases involving the scope of the "ministerial exception" doctrine. The Court consolidated the two cases for review.  One of the cases is St. James School v. Biel, (Docket No. 19-348, certiorari granted 12/18/2019). In the case, the U.S. 9th Circuit Court of Appeals  in a 2-1 decision held that a 5th grade teacher at a Catholic elementary school is not a "minister" for purposes of the ministerial exception doctrine. At issue was a suit under the Americans for Disability Act brought by a teacher whose contract was not renewed.  (See prior posting.) The 9th Circuit over 9 dissents denied en banc review. (See prior posting.) The second case in which the Supreme Court granted review is Our Lady of Guadalupe School v. Morrissey-Berru, (Docket No. 19-267, certiorari granted 12/18/2019). In the case, the U.S. 9th Circuit Court of Appeals held that a teacher in a Catholic school is not a "minister" for purposes of the ministerial exception doctrine. (Full text of 9th Circuit decision).

India's Supreme Couirt Will Review Controversial Citizenship Law Amendments

On Dec. 12, India's Citizenship (Amendment) Act, 2019 (full text) that was passed by Parliament received assent of the President.  The controversial new law  allows migrants who came into India from Afghanistan, Bangladesh, or Pakistan on or before December 31, 2014, and who belong to the Hindu, Sikh, Buddhist, Jain, Parsi, or Christian religious communities, to become citizens. It does not include Muslims from those nations. (Background),  Muslims fear that the new law is part of Home Minister Amit Shah's plan to create a nationwide citizens' register to weed out illegal immigrants.  Now, according to Bloomberg, India's Supreme Court, in response to more than 50 petitions, will review the constitutionality of the new law. An initial hearing is scheduled for January 22.

Settlement Approved In Muslim Woman's Suit Over Booking Procedures

Minneapolis Star-Tribune reports that a Minnesota federal district court last month approved a $120,000  settlement of a suit brought by a Muslim woman, Aida Shyef Al-Kadi, who was  required by Ramsay County jail officials to remove her hijab after she was arrested on a traffic offense.The report goes on:

Along with the $120,000 payout, the settlement includes having the jail put specific rules in place on how to accommodate inmates with religious headwear during the booking photo process.

The county, while not required by the settlement to admit wrongdoing, further agreed to destroy all hard copies and delete any electronic versions of Al-Kadi’s booking photo. Also, the Sheriff’s Office must train its corrections officers on policies concerning inmates and the religious accommodations they require. County Board Chairman Jim McDonough called the terms “fair and in the best interests of our citizens.”

Russian Court Liberalizes Allowed Religious Use of Residences

Forum 18 reports this week on a November 2019 decision by Russia's Constitutional Court liberalizing the permissible religious uses of buildings that are zoned for residential purposes. The report explains:

The case followed a fine imposed on Olga Glamozdinova, a Seventh-day Adventist in Rostov Region, for granting free use of a room in her house to her Church and allowing them to use it as its legal address, when the land is designated for personal part-time crop cultivation. This land use permits the construction of a dwelling, but not of a religious building.

Glamozdinova argued that the house is also occupied as a dwelling by an acquaintance who also tends the crops on the plot, and the congregation uses the room for only four hours per week. The fine was upheld on appeal at both district and regional courts, but the Constitutional Court has now ruled that Glamozdinova's fine is subject to review because the law had been incorrectly applied in her case....

The Court stated, however, that religious use of residential premises must take into account the rights and legitimate interests of residents and neighbours, and the requirements of health and safety and environmental protection legislation. The Court also stated that it would be "unacceptable" for a dwelling to lose the features of residential premises and acquire those of a religious or administrative building....

This November 2019 Constitutional Court ruling may lead to fewer fines being imposed on religious organisations and individuals, but this will depend on Federal Service for State Registration, Cadastre and Cartography (Rosreestr) and other officials....

Cert. Denied In Boise Ban On Sleeping Outdoors

Yesterday the U.S. Supreme Court denied review in Boise, ID v. Martin, (Docket No. 19-247, certiorari denied 12/16/2019). (Order List.) In the case the U.S. 9th Circuit Court of Appeals held that the ban on cruel and unusual punishment in the 8th Amendment bars a city from criminalizing sleeping outdoors on public property when homeless people have no option to sleep indoors, including where their access to a shelter is conditioned on their participating in religious programs. (See prior posting.) Los Angeles Times has an Opinion piece on the case.

WAPO: IRS Whistleblower Says Mormon Church Misled Regarding Charitable Accounts

The Washington Post reports today:

A former investment manager alleges in a whistleblower complaint to the Internal Revenue Service that the Church of Jesus Christ of Latter-day Saints has amassed about $100 billion in accounts intended for charitable purposes, according to a copy of the complaint obtained by The Washington Post.

The confidential document, received by the IRS on Nov. 21, accuses church leaders of misleading members — and possibly breaching federal tax rules — by stockpiling their surplus donations instead of using them for charitable works. It also accuses church leaders of using the tax-exempt donations to prop up a pair of businesses.

Judge Who Refused To Perform Same-Sex Ceremonies Sues Over Reprimand

As previously reported, in November the Texas State Commission on Judicial Conduct issued a Public Warning to Justice of the Peace Dianne Hensley because of her refusal to perform same-sex marriage ceremonies. Now a lawsuit has been filled challenging the Commission's action.  The complaint (full text) in Hensley v. Texas State Commission on Judicial Conduct, (TX Dist. Ct., filed 12/16/2019) contends that the Commission's action violates Judge Hensley's rights under the Texas Religious Freedom Restoration Act. The complaint also seeks a class-wide declaratory judgment. Fox 44 News reports on the lawsuit.

Cert. Denied In Suit Against Priest Over Baptism Ritual

The U.S. Supreme Court today denied review in Fermin v. Priest of St, Mary- Marfa, Texas, (Docket No. 19-471, certiorari denied 12/16/2019) (Order List). In the case, the U.S, 5th Circuit Court of Appeals (full text of opinion) affirmed the dismissal of a suit in which a Texas man claimed that an unnamed priest used a crucifix during his baptism in 1925 "in violation of God's law" (including the Second Commandment's prohibition of idolatry).

Recent Articles of Interest

From SSRN:

• Seth Barrett Tillman, A Religious Test in America?: New Sources on the 1809 Motion to Vacate Jacob Henry's North Carolina State Legislative Seat, (November 25, 2019).
• Daniel P. Tokaji Denying Systemic Equality: The Last Words of the Kennedy Court, (December 9, 2019), 13 Harvard Law & Policy Review 539 (2019).
• Maritza Black, Adjudicating the Religious Beliefs of an Asylum Seekers: When the ‘Well-Founded Fear’ Standard Leads Courts Astray, (November 24, 2019).
• Engy Abdelkader, Myanmar: The Rohingya Crises as an Analytic Lens to Understanding Violent Extremism, (Handbook on the Dynamics of Violent Extremism, Extremist Groups and State Fragility, Routledge, Forthcoming).
• Leonid Sykiainen, FIQH as a Source of Contemporary Law in Arab Countries, (Higher School of Economics Research Paper No. WP BRP 92/LAW/2019).
• Aina-Obe Shamsuddin Bolatito, Islamic Fiqh (Jurisprudence) and Public Life: A Conundrum, (December 11, 2019).
• Kyriaki Topidi, Words that Hurt (1): Normative and Institutional Considerations in the Regulation of Hate Speech in Europe, (ECMI Working Paper n.118 (2019)).
• Kyriaki Topidi, Words that Hurt (2): National and International Perspectives on Hate Speech Regulation, (ECMI Working Paper Series n. 119 (2019)).
• Rochelle Rolston, Addressing Hate Crime in New Zealand: A Separate Offence?, (Victoria University of Wellington Legal Research Paper, Student/Alumni Paper No. 45/2019).
• Jens Ihlow & Jens Carsten Jackwerth, Stock Market Performance of Jewish Firms During the Third Reich, (December 9, 2019).

Recent Publications:

• Steven H. Sholk, A Guide to Election Year Activities of Section 501(c)(3) Organizations, (Updated 2019 version, PLI Course Handbook).

Lighting Regulations Limiting Use of Catholic School's Baseball Field Do Not Violate RLUIPA

In Marianist Province of the United States v. City of Kirkwood, (8th Cir., Dec. 13, 2019), the U.S. 8th Circuit Court of Appeals rejected a claim by Vianney High School in Kirkwood, Missouri that the city's lighting and sound regulations which limit use of its baseball field at night violate its rights under RLUIPA and state law.  The court said in part:

Vianney asserts that various forms of religious exercise “motivate the school’s use” of its baseball field at night. The school emphasizes that athletics is part of the “formation of young men” in the Catholic Marianist tradition and that nighttime sports games allow it to reach out to the community and engage in religious fellowship.... Assuming Vianney’s uses of its baseball field at night ... constitute religious exercise, we examine its claim that the regulations substantially burden this exercise.

Vianney has not demonstrated that its religious exercise is substantially burdened, rather than merely inconvenienced, by its inability to use its baseball field at night.

The court also rejected the school's RLUIPA "equal terms" claim, and held that its state law claims should be dismissed as well.

5th Circuit Strikes Down Mississippi's Anti-Abortion Law

The U.S. 5th Circuit Court of Appeals yesterday struck down a Mississippi statute that prohibits abortions, with limited exceptions, after 15 weeks' gestational age.  In Jackson Women's Health Organization v. Dobbs, (5th Cir., Dec. 13, 2019), Judge Higginbotham writing for himself and Judge Dennis said in part:

In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before viability. States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right, but they may not ban abortions. The law at issue is a ban. Thus, we affirm the district court’s invalidation of the law, as well as its discovery rulings and its award of permanent injunctive relief.

Judge Ho filed a separate opinion concurring in the judgment, but criticizing the district court's opinion.  He said in part:

[W]hat distinguishes abortion from other matters of health care policy in America—and uniquely removes abortion policy from the democratic process established by our Founders—is Supreme Court precedent. The parties and amici therefore draw our attention not to what the Constitution says, but to what the Supreme Court has held.

A good faith reading of those precedents requires us to affirm..... I am nevertheless deeply troubled by how the district court handled this case. The opinion issued by the district court displays an alarming disrespect for the millions of Americans who believe that babies deserve legal protection during pregnancy as well as after birth, and that abortion is the immoral, tragic, and violent taking of innocent human life.

UPI reports on the decision.

Suit Filed Against Pharmacies That Refused To Fill Emergency Contraceptive Prescription

A suit was filed earlier this week in a Minnesota state trial court against two pharmacies and an individual pharmacist by a woman who was turned down at both pharmacies when she attempted to full a prescription  for ella-- a morning-after emergency contraceptive. The suit contends that defendants discriminated against plaintiff on the basis of sex, in violation of the Minnesota Human Rights Act. The Act defines "sex" as including pregnancy, childbirth, and related conditions. The complaint (full text) in Anderson v. Grand St. Paul CVS, LLC,(MN Dist. Ct., filed 12/9/2019) sets out the facts of plaintiff's discrimination claim:

[Anderson] had her doctor send [her prescription] to the McGregor Thrifty White pharmacy. She acted quickly because any delay in obtaining emergency contraception increases the risk of pregnancy. The pharmacist on duty told her that he would be unable to fill her prescription because of his “beliefs.” He also warned her against trying Shopko, another pharmacy in the surrounding area. The pharmacist did not provide Anderson with any information about how she could get her prescription filled.

Anderson next tried a CVS pharmacy in Aitkin, Minnesota, a town roughly 20 miles away. The CVS pharmacist also indicated that she could not fill the prescription. The pharmacist then claimed that she called a pharmacist at the Walgreens in Brainerd Minnesota, who told her that they could not fill the prescription either. Anderson later confirmed with that Walgreens pharmacist that they did speak with a pharmacist from CVS, but that they had told the CVS pharmacist that Walgreens could fill the prescription.

Though Anderson finally found a pharmacy that was willing to fill her prescription, it was over fifty miles from her home. Meanwhile, a massive snowstorm was headed to central Minnesota.  Given the increased risk of pregnancy from any delay in taking emergency contraception, Anderson drove over 100 miles round trip in the snowstorm in order to fill her prescription....

 NBC News reports on the lawsuit. [Thanks to Tom Rutledge for the lead.]

Church of Atheism Not A Charity Under Canadian Tax Law

In Church of Atheism of Central Canada v. Minister of National Revenue, (Canada Fed. Ct. App., Nov. 29, 2019), Canada's Federal Court of Appeal held that the Church of Atheism of Central Canada is not entitled to registration as a charity under Canada's Income Tax Act.

Because the Act does not define “charitable activities”, we must turn to the common law to answer this question. At common law, there are four recognized charitable purposes, the two relevant to this appeal being “the advancement of religion” and “certain other purposes beneficial to the community” ....

Turning therefore to section 2(a) of the Charter, the appellant is correct to point out that the courts have found that this section does protect the rights of atheists.... However, I find in this case that the Minister’s refusal to register the appellant as a charitable organization does not interfere in a manner that is more than trivial or insubstantial with the appellant’s members ability to practise their atheistic beliefs. The appellant can continue to carry out its purpose and its activities without charitable registration....

Law & Religion UK reports at greater length on the decision.

Appeals Court Refuses Temporary Injunction Against Quebec's Secularism Act

In Hak v. Attorney General of Quebec, (Quebec Ct. App., Dec. 12, 2019) (full text of opinion in French), the Quebec Court of Appeal, by a 2-1 vote, upheld a trial court's refusal to issue a temporary injunction against the enforcement of two provisions of the Secularism Act (Bill 21). The sections at issue bar teachers, as well as various other public employees and officials, from wearing religious symbols in carrying out their official duties, and prohibit various public employees from carrying out their functions with their face covered. The individual plaintiff in the case who is about to graduate as a teacher wants to wear her hijab while teaching French in an English elementary or high school.

Judge Belanger refused to grant the temporary injunction, saying in part:

What the Attorney General invokes in this case and with reason, that is the presumption that the legislation addresses the common good . At this stage of the proceedings, the Court must assume that the Act serves a valid public purpose. Unless it is clear that the law enacted is not intended to serve a public purpose, the courts must take it for granted.

It follows from this principle that the courts will not suspend legislation passed by a legislature without having made a full constitutional review. Accordingly, suspension orders are only issued in clear cases.

We must recognize that we are not in a clear case where we can say right now that the Act is unconstitutional, despite the presence of serious issues.

Judge Mainville would likewise refuse a temporary injunction, saying in part:

[W]hen, as here, questions arise about the relationship between the state and religions, on which deep differences may reasonably exist within a free and democratic society, there is a need for courts to act with caution and circumspection because of the diversity of approaches to these issues and the difficulty of forming a uniform understanding of the meaning of religion in society. The role and impact of religion in society, as well as the forms of public expression of religious belief, are not the same in different times and contexts. They vary according to changing sociological and ideological factors, national traditions and demands imposed by the protection of the rights and freedoms of others and the maintenance of public order in a given society. The conception of the religious symbolism and its place in the public space are not perceived in the same way by each society.The State Secularism Act is a striking example in Canada.

It should therefore be noted that many of the issues relating to the wearing of religious symbols by police officers, teachers, principals and judicial personnel in Quebec - including the legal issues that arise - are complex and do not lend themselves to summary analyzes on the basis of piecemeal evidence, as the appellants ask us to do in this case.....

At this stage of the judicial proceedings, a suspension of sections 6 and 8 of the State Secularity Act can not be contemplated since the Court must presume that the public interest is served by the maintenance in force of these provisions given the presumption of constitutional validity. 

Chief Justice Hesler would have granted a temporary injunction, saying in part:

To sum up, it appears at this stage that the risk of suffering irreparable harm has materialized for certain teachers, all of whom are women, who aspired to a career in teaching. The prejudice will remain for the others who, not wishing to abandon the wearing of a religious sign, will have to give up their choice of career, or even move out of Quebec....

Without prejudging the fate of the appeal, which will be heard in October 2020, it is better to uphold respect for fundamental rights during the proceedings, considering the obligation on the courts to enforce these rights, rather than to deprive people of their fundamental rights, even for a limited time. [All English translations are via Google Translate].

Montreal Gazette reports on the decision.

Supreme Court Review Sought In City Council Speech Limits At Meeting On Mosque

A petition for certiorari (full text) was filed on Dec. 9 with the U.S. Supreme Court in Youkhanna v. City of Sterling Heights. In the case, the U.S. 6th Circuit Court of Appeals rejected challenges to the manner in which the city of Sterling Heights, Michigan conducted a raucous city council meeting at which settlement of a RLUIPA lawsuit was being considered.  At issue was the city's settlement of a zoning dispute with backers of a mosque.  City Council placed limits on the scope of comments that citizens could make during the meeting, and eventually cleared the meeting room when the audience became disruptive. (See prior posting.)

Appeals Court Dismisses Suit To Enforce Board's Suspension of Church Pastor

In Stewart v. McCray, (IN App., Dec. 11, 2019), an Indiana state appellate court dismissed a suit seeking to enforce a suspension imposed by the Board of Directors of a Baptist church on its pastor. The trial court had found the pastor in contempt a the court's order enforcing the suspension.  As the court of appeals explained:

This matter stems from a years-long dispute between certain members of the congregation of the Canaan Baptist Church, in Elkhart, Indiana ... and its pastor, Reverend McNeal Stewart, III ... involving allegations that Rev. Stewart usurped the authority of the Church’s board of directors and disregarded the constitution and bylaws of the Church.....

The instant matter arises from Rev. Stewart’s suspension from his pastoral duties for his alleged failure to act in accordance with the Church’s Bylaws. Regardless of whether the parties, at times, failed to adhere to the Church’s Bylaws, at bottom, this is a dispute over the Church’s leadership. As such, this matter, at its core, is purely ecclesiastical and one which the trial court lacked subject matter jurisdiction to adjudicate.

Catholic School Principal's Retaliatory Discharge Claim Dismissed

In Rehfield v. Diocese of Joliet, (IL App., Dec. 10, 2019), an Illinois state appeals court dismissed a suit by the former principal of a Catholic school who contended that she was the victim of a retaliatory discharge. Her suit raised both common law and Whistleblower Act claims. Plaintiff's firing came after controversy over her contacting the police about a threatening phone call from a parent to the parish priest. In dismissing the suit, the court said in part:

[T]he ecclesiastical abstention doctrine applied to Rehfield’s claims. Further, since this case involved the Diocese’s subjective decision to terminate Rehfield’s employment and did not involve church charters, constitutions and bylaws, deeds, State statutes, or other evidence that would resolve the matter the same as it would a secular dispute, we decline to employ the neutral principals of law approach.... Last, because we find the ecclesiastical abstention doctrine applied to Rehfield’s claims, we need not address ... whether claims for common law retaliatory discharge are available to contractual employees.

Trump Signs Executive Order On Title VI and Anti-Semitism

President Trump yesterday issued an Executive Order on Combating Anti-Semitism. The Order reads in part:

Title VI of the Civil Rights Act of 1964 (Title VI), 42 U.S.C. 2000d et seq., prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving Federal financial assistance.  While Title VI does not cover discrimination based on religion, individuals who face discrimination on the basis of race, color, or national origin do not lose protection under Title VI for also being a member of a group that shares common religious practices.  Discrimination against Jews may give rise to a Title VI violation when the discrimination is based on an individual’s race, color, or national origin.

It shall be the policy of the executive branch to enforce Title VI against prohibited forms of discrimination rooted in anti-Semitism as vigorously as against all other forms of discrimination prohibited by Title VI....

The Executive Order goes on to provide that in enforcing Title VI, executive departments shall consider the definition of anti Semitism adopted ... by the International Holocaust Remembrance Alliance, and "the 'Contemporary Examples of Anti-Semitism' identified by the IHRA, to the extent that any examples might be useful as evidence of discriminatory intent."

The White House issued a Fact Sheet on the Order which, as reported by AP, was signed during a White House Hanukkah reception.

Methodist Parent Body Sues SMU Over Attempted Split From Church Control

Suit was filed last week in a Texas state trial court by the regional parent body of the Methodist Church against Southern Methodist University alleging that SMU last month filed invalid amendments to its Articles of Incorporation purporting to eliminate the parent body's control over SMU's board of trustees, over amendments to SMU's Articles of Incorporation, and over sale of SMU's property.  The complaint (full text) in South Central Jurisdictional Conference of the United Methodist Church v. Southern Methodist University, (TX Dist. Ct., filed 12/4/2019), alleges:

The November 2019 Articles make no mention of SCJC, much less any mention of the rights permanently guaranteed to SCJC by SMU’s governing documents. Instead, by deleting any mention of SCJC and its rights, the November 2019 Articles attempt to terminate all of SCJC’s rights and relationship with SMU without approval or authorization of SCJC for the amendment in Violation of SMU’s governing documents and the Trustees’ fiduciary duties to SCJC.

RNS, reporting on the lawsuit, says that the moves by SMU are "part of the latest fallout over the global denomination's decision earlier this year to strengthen language in its rulebook barring LGBTQ members from marriage and ordination."

New USCIRF Report on Apostasy, Blasphemy and Hate Speech Laws In Africa

Yesterday, he U.S. Commission on International Religious Freedom released a 50-page report titled Apostasy, Blasphemy, and Hate Speech Laws in Africa: Implications for Freedom of Religion or Belief (full text of report). The Executive Summary reads in part:

The freedoms of opinion and expression and of religion or belief are intricately intertwined—where violations occur against one, there are often violations against the other. Although these human rights are protected under articles 18 and 19 of the Universal Declaration of Human Rights (UDHR), states around the world continue to pass and enforce laws that restrict both freedoms. This paper provides a survey and analysis of speech restrictions in Africa that have, or may, limit FoRB. Laws that restrict apostasy (the public renunciation of one’s religion), blasphemy (the insult of a religion or religious objects or places), and hate speech (generally encompassing communication that prejudices a particular group based on race, religion, ethnicity, or other factor) all limit freedom of expression. Such laws also have unique implications for citizens’ abilities to express and practice their faith. These laws are prevalent throughout Africa, where at least 9 countries have apostasy laws, at least 25 criminalize blasphemy, and at least 29 have laws against hate speech.

Misunderstanding of RFRA Not A Defense To Willful Failure To File Tax Returns

The Oregonian reports that an Oregon federal district court yesterday found a tax protester guilty on four counts of willful failure to file tax returns.  The verdict came in a second trial on stipulated facts after defendant's first trial ended in a hung jury. The court ruled that while a good faith misunderstanding of the tax law is a defense to "willfulness", that defense was unavailable here. As reported by The Oregonian:

Bowman’s lawyer had argued during Bowman’s jury trial that Bowman’s reliance on another federal law, the Religious Freedom [Restoration] Act, led to his "good faith’' misunderstanding of his obligations under the federal tax code. The judge threw out that defense before Bowman’s second trial, ruling that any "good faith'' misunderstanding had to be of the tax code itself, not another law.

The court's ruling was presumably based on its reading of the U.S. Supreme Court's decision in Cheek v. United States (1991).  An appeal of the conviction is planned.

Court Dismisses Challenges To NY Repeal of Religious Exemption From Vaccination Requirement

In F.F. on behalf of her minor children v. State of New York, (Albany Cty NY Sup. Ct., Dec. 3, 2019), a New York state trial court upheld New York's repeal of the religious exemption to the state's compulsory vaccination requirement for school children.  The court rejected Free Exercise, Free Speech and Equal Protection challenges to the repeal.  The suit was brought by some 55 families of school children. In rejecting free exercise claims by plaintiffs, the parents of school children, the court rejected their argument that the object of the law was to target religion rather than protect public health.  The court went on to say in part:

[P]lainitffs most strenuous argument for applying strict scrutiny is that the repeal of the legislation was infected by statements made by individual legislators whose comments, they say, demonstrate unconstitutional hostility toward plaintiffs' sincerely held religious beliefs.  For this argument, Plaintiffs cite Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Comm'n., (138 S Ct 1719 [2018]), where the Supreme Court relied on the comments of individual members of the Colorado Civil Rights Commission, which sanctioned a baker for his refusal to make a wedding cake for a same sex couple....

This Court declines to extend that part of the Supreme Court's analysis in Masterpiece Cakeshop, which probed the comments of individual members of a decision-making body to the collective decision-making of New York State's Legislature and Executive.... [I]n Masterpiece Cakeshop, the Court considered the remarks of a seven-member administrative body, not a state legislature.

The trial court had previously denied a preliminary injunction against the exemption repeal (see prior posting), and the state appellate court summarily affirmed that decision. Albany Times-Union reports on the trial court's latest decision.

Supreme Court Denies Review Of Kentucky Ultrasound Informed Consent Law

The U.S. Supreme Court today denied review in EMW Women’s Surgical Center v. Meier, (Docket No. 19-417, certiorari denied 12/9/2019). (Order List). In the case, the U.S. 6th Circuit Court of Appeals, in a 2-1 decision, rejected a 1st Amendment free speech challenge to Kentucky's Ultrasound Informed Consent Law. The law requires a doctor to make the fetal heartbeat audible, and to display and describe ultrasound images, to a woman seeking an abortion. (See prior posting.) CNN reports on the Court's action.

Recent Articles and Books of Interest

From SSRN:

• Zalman Rothschild, Free Exercise's Outer Boundary: The Case of Hasidic Education, (119 Colum. L. Rev. F. 200 (2019)).
• Helen Pausacker & Amanda Whiting, Special Issue: Legal Regimes of Sexual Orientation and Gender Identity in Asia, (Australian Journal of Asian Law, Vol. 20, No. 1, Article 1, 2019).
• Stephen Mark Bainbridge, Christianity and Corporate Purpose, (UCLA School of Law, Law-Econ Research Paper No. 19-10 (2019).
• John Makdisi, Aquinas's Prohibition of Killing Reconsidered, (57 J. Cath. Leg. Stud. 67 (2018)).
• Ricardo Perlingeiro & Amanda da Fonseca de Oliveira, 'Laicidade' in Brazil as a Booster to Religious Freedom, (2019).
• Kathryn Chan, Constitutionalizing the Registered Charity Regime: Reflections on Canada Without Poverty v Canada (AG), (Forthcoming in Canadian Journal of Comparative and Contemporary Law, summer 2020).
• James Fishman, The Private Foundation Rules at Fifty: How Did We Get Them and Do They Meet Current Needs?, (Pittsburgh Tax Review, Forthcoming).

From SSRN (Islamic Law):

• Mushtaq Ahmad, Revisiting the Discourse on Islam and Human Rights, (November 21, 2019).
• Muhtaq Ahmad, Discovering the Law without a Coherent Legal Theory: The Case of the Council of Islamic Ideology, (November 19, 2019).
• Ashraf Booley, Progressive Realisation of Muslim Family Law: The Case of Tunisia, (Potchefstroom Electronic Law Journal, Vol. 22, 2019).

Recent Books:

• Nathan Walker, The First Amendment and State Bans on Teachers' Religious Garb: Analyzing the Historic Origins of Contemporary Legal Challenges in the United States, (Routledge, September 4, 2019).
• Jianlin Chen, The Law and Religious Market Theory: China, Taiwan and Hong Kong, (Cambridge Univ. Press, December 2019).

Prison's Denial of Access To Religious Services As Discipline Is Invalid

In Greenhill v. Clarke, (4th Cir., Dec. 6, 2019),the U.S. 4th Circuit Court of Appeals held that, absent further justification, a prison disciplinary policy which denied a Muslim inmate television access to view weekly Jum'ah services violates his free exercise rights protected by RLUIPA and the 1st Amendment. The court said in part:

The VDOC’s Step-Down Program appears to be a sophisticated, well-conceived program to better inmates’ behavior and their confinement, as well as to improve safety and the overall operation of the prison. But holding inmates’ religious exercise hostage to incentivize their participation in the Program is impermissible under RLUIPA. Access to bona fide religious exercise is not a privilege to be dangled as an incentive to improve inmate conduct, and placing such religious exercise in the category of privilege to be earned is fundamentally inconsistent with the right to religious exercise that RLUIPA guarantees to prisoners.....

The court also held that the prison's grooming policy that precludes growing of a 4-inch beard imposes a substantial burden on the Muslim inmate's religious exercise. [Thanks to Will Esser via Religionlaw for the lead.]

3rd Circuit Affirms Dismissal of Title VII Religious Discrimination Suit

In Darby v. Temple University, (3d Cir., Dec. 4, 2019), the U.S. Third Circuit Court of Appeals affirmed the dismissal of plaintiff's claim under Title VII that he was fired by Temple University because of his religion.  The court said in part:

[Plaintiff] states that he wore a cross on a chain around his neck, that he read the bible on breaks, that he spoke openly about attending church services, and that he was employed at Temple for a lengthy period of time. But none of the evidence he produced is sufficient to reasonably infer that his coworkers knew his Baptist identity. More important, none of it relates directly to the person, Thomas Johnston, who terminated his employment. He does not proffer any evidence to show that Johnston knew of his religious affiliation.

Penn Live reports on the decision.

Missouri AG Supports High School Football Coaches' Prayer Practices

Missouri Attorney General Eric Schmitt this week released a letter (full text) which he sent on Dec. 3 to the superintendent of the Cameron, Missouri School District supporting high school football coaches against charges in a letter (full text) from the Freedom From Religion Foundation . In its Oct. 28 letter, FFRF said in part:

It is our understanding the Cameron High School's head football coach, Jeff Wallace, and assistant football coach, David Stucky, have been holding religious "chapel" services for players before and after football games where coaches pray with players and read and discuss bible verses.  We understand that after games, Coach Wallace holds religious services with players on the fifty-yard line and leads players in prayer.  We understand that Coach Wallace often brings in outside preachers to proselytize to players as well.

It is illegal for public school athletic coaches to lead their teams in prayer or religious worship.

Responding to this, Attorney General Schmitt in his letter said in part:

FFRF is an extreme anti-religion organization that seeks to intimidate local governments into surrendering their citizens' religious freedom and to expunge any mention of religion from the public square....

Our understanding is that no coach or other Cameron official has forced any football player to participate in prayer or taken any action against any player who chose not to participate.   The prayer occurs outside of the football game.  The prayer is not broadcast over stadium loudspeakers, and fans evidently cannot hear any part of the prayer.  The school district reports that it received no complaints from anyone about the prayer, and FFRF does not reference any complainant in their letter.   Evidently, FFRF's threat does not reflect any discomfort with the prayers in the local community.  Rather, it reflects only FFRF's radical agenda. And without a complainant, FFRF lacks standing to sue the school district, no matter how strongly it objects to this voluntary prayer.

 Friendly Atheist blog reports on these developments.

Priest Sues Archdiocese Over Inclusion In List of Accused Clergy

A lawsuit was filed last month in a Missouri state trial court by a former priest who claims that the Archdiocese of St. Louis defamed him when it included his name on a widely circulated list of clergy for whom there are substantiated allegations of sexual abuse of a minor. The complaint (full text) in Toohey v. Archdiocese of Saint Louis, (MO Cir. Ct., filed 11/3/2019) contends that the allegations against plaintiff are false, that the Archdiocese never notified plaintiff of the allegations and never gave him an opportunity to rebut the charges. St. Louis Post Dispatch reports on the lawsuit.

Congress Passes Uyghur Human Rights Policy Act

On Tuesday, Congress gave final passage to S.178, the Uyghur Human Rights Policy Act of 2019 (full text). In part, the bill finds that:

The Government of the People’s Republic of China has a long history of repressing approximately 13,000,000 Turkic, moderate Sunni Muslims, particularly Uyghurs, in the nominally autonomous Xinjiang region. These actions are in contravention of international human rights standards, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

The bill goes on to express the sense of Congress that, among other steps:

the President should condemn abuses against Turkic Muslims by Chinese authorities in Xinjiang and call on Chinese President Xi Jinping to recognize the profound abuse and likely lasting damage of China’s current policies, and immediately close the “political reeducation” camps, lift all restrictions on and ensure respect for internationally guaranteed human rights across the region, and allow for reestablishment of contact between those inside and outside China;....

the Secretary of State should fully implement the provisions of the Frank Wolf International Religious Freedom Act ... and consider strategically employing sanctions and other tools under the International Religious Freedom Act....

The bill will now go to the President for his signature.

A New Wave of Clergy Sex Abuse Cases Is Expected

An AP investigative report published on Tuesday highlights the rash of new clergy sex abuse cases being pursued as 15 states have extended or suspended their statutes of limitations to allow even decades-old child sex abuse claims to be filed:

It's a financial reckoning playing out in such populous Catholic strongholds as New York, California and New Jersey, among the eight states that go the furthest with "lookback windows" that allow sex abuse claims no matter how old. Never before have so many states acted in near-unison to lift the restrictions that once shut people out if they didn't bring claims of childhood sex abuse by a certain age, often their early 20s....

AP interviews with more than a dozen lawyers and clergy abuse watchdog groups offered a wide range of estimates but many said they expected at least 5,000 new cases against the church in New York, New Jersey and California alone, resulting in potential payouts that could surpass the $4 billion paid out since the clergy sex abuse first came to light in the 1980s.

Controversy Over Army Licensed Items With Religious Theme

First Liberty Institute yesterday sent a letter (full text) to the U.S. Army complaining about the Army's order to a private faith-based company that is licensed to produce Army-themed products. (Press release). The Army instructed the company to remove Biblical verses from its popular Shields of Strength (SoS) dog tags. Since 9-11, SoS has produced over 4 million dog tags, the most popular carrying the words of Joshua 1:9: "Have I not commanded you? Be strong and courageous. Do not be afraid; do not be discouraged, for the Lord your God will be with you wherever you go."

The Army's action follows a complaint from the Military Religious Freedom Foundation about the religious content of the Army-licensed products.  First Liberty argues, however:

once the Army creates a limited public forum via a trademark licensing regime and allows private entities such as SoS to obtain licenses, the Army cannot “discriminate against speech on the basis of its viewpoint” in the administration of the trademark licensing regime. The Army is therefore prohibited from discriminating against SoS because of its inclusion of biblical references on its products, in its advertisements, or on its website.....

More recently, in Iancu v. Brunetti the Supreme Court ...  invalidated the Lanham Act’s “immoral or scandalous” clause as viewpoint discrimination.....

Clearly, if a prohibition against trademarking offensive, immoral, or scandalous speech constitutes viewpoint discrimination, then certainly the Army’s prohibition against using religious speech in conjunction with its trademark does, too. This is especially true because the Army routinely grants licenses to similar, non-religious speech.

Former Cardinal McCarrick and Newark Archdiocese Sued By Sex Abuse Victim

Just minutes after a new New Jersey law went into effect opening a 2-year window in which previously time-barred sex abuse cases can be filed, suit was filed in a New Jersey state trial court against former Cardinal Theodore McCarrick and the Catholic Archdiocese of Newark. The complaint (full text) in Bellocchio v. Roman Catholic Archdiocese of Newark, (NJ Super. Ct., filed 12/1/2019), states claims for sexual battery against McCarrick, and for negligence against the Archdiocese. It alleges in part:

31. In approximately 1995 or 1996, when Plaintiff was approximately 13 or 14 years old, McCarrick engaged in unpermitted sexual contact with Plaintiff.

32. McCarrick engaged in a similar course of conduct and pattern of sexual predation of devout Catholic youth under his control.

Washington Post and America report on the lawsuit.

Texas Justice of the Peace Warned Over Her Refusal To Perform Same-Sex Weddings

Last month, the Texas State Commission on Judicial Conduct issued a Public Warning (full text) to Justice of the Peace Dianne Hensley. The Nov. 12 warning reads in part:

Beginning on about August 1, 2016, Judge Hensley and her court staff began giving all same-sex couples wishing to be married by Judge Hensley a document which stated "I'm sorry, but Judge Hensley has a sincerely held religious belief as a Christian, and will not be able to perform any same sex weddings." The document contained a list of local persons who would officiate a same-sex wedding....

... Judge Hensley testified that she would recuse herself from a case in which a party doubted her impartiality on the basis that she publicly refuses to perform same-sex weddings.....

... [T]he Texas State Commission on Judicial Conduct has determined that the Honorable Judge Dianne Hensley ... should be publicly warned for casting doubt on her capacity to act impartially to persons appearing before her as a judge due to the person's sexual orientation in violation of Canon 4A(l) of the Texas Code of Judicial Conduct.

Connecticut Rabbi Sentenced To 12 Years In Prison For Sex Abuse of High Schooler

According to the New Haven Independent, a Connecticut trial court judge yesterday sentenced Rabbi Daniel Greer, a once-prominent New Haven religious leader, to 12 years in prison, with 8 years after that on probation. He will also be required to register as a sex offender.  The 79-year old rabbi was convicted on four counts of risk of injury to a minor. The convictions grew out of a series of rapes of a male high school student from 2002 to 2005 while the student was enrolled at Rabbi Greer's New Haven yeshiva. Originally a jury found Greer guilty on four felony counts of child endangerment, but the judge reduced the charges to a lower felony class. Other sexual assault charges were dismissed on technical grounds.  In 2017, a civil jury awarded $21 million in damages against Greer and his yeshiva in a suit by the rape victim.  Little of that has been paid so far.

State Insurance Regulators Target Trinity Health-Care Sharing Ministry

NPR reported earlier this week on enforcement actions by insurance regulators in Texas, Colorado, Washington and New Hampshire against Aliera and its affiliate Trinity HealthShare for violating rules relating to health-care sharing ministries. These plans for sharing health care costs of members are significantly cheaper than standard health insurance policies. Most of the Christian affiliated ministries will not cover abortion services, and offer prayer hotlines for members. The October 30 press release from the New Hampshire Insurance Department announcing its enforcement action states in part:

Trinity represents itself as a health care sharing ministry, which would be exempt from state insurance regulation. A legal health care sharing ministry is a nonprofit organization in existence since December 31, 1999, whose members share a common set of ethical or religious beliefs and share medical expenses among members. [Trinity was not formed until 2018 and did not show it is faith based and limited its membership to those with common beliefs.]

The Department’s Consumer Services Division received dozens of complaints and concerns from consumers. Some people believed they were buying health insurance and did not know they had joined a health care sharing ministry. Many people discovered this when their claims were denied because their medical conditions were considered pre-existing under the plan, or were not covered because they were deemed inappropriate for a “Christian lifestyle.” 

[Thanks to Scott Mange for the lead.]

British Court Enjoins Protests Against School's LGBT Curriculum

In Birmingham City Council v. Afsar, (EWHC, Nov. 26, 2019), a trial judge in the High Court in the British city of Birmingham held that an injunction should be issued limiting the manner in which demonstrators can protest an elementary school's curriculum on LGBT issues. According to the court:

The case has been pleaded and argued in various ways, but at its heart is the argument that the School’s teaching policy – described by the defendants as “the teaching of LGBT issues (ie teaching equalities)” – represents or involves unlawful discrimination against British Pakistani Muslim children at the School, and those with parental responsibility for them ... on grounds of race and/or religion. It is submitted that the core religious, philosophical and cultural values of this group “are centred on heterosexual relationships in marriage; this state of belief does not encompass same sex relationships”. ....

The court held that the Equality Act 2010 excludes from its coverage anything done in connection with the content of curriculum. In any event, the court concluded:

The teaching has been misunderstood and misinterpreted by the defendants, and misrepresented, sometimes grossly misrepresented, in the course of the protests. The matters that have actually been taught are limited, and lawful. 

The court went on:

The evidence – including but not limited to the expert evidence - persuades me that the levels of noise generated by this way of protesting is clearly excessive, amounting to an intrusion into the lives of those at the School and its neighbours that goes well beyond anything that could be justified as proportionate to the aims of persuasion. 

The court held, however, that an earlier injunction banning the use of social media by protesters should be lifted, saying in part:

The speech with which I am here concerned has been expressed in the context of a private, or limited, WhatsApp group. It was not aimed at the teachers, in the sense that they were intended to read it. It has come to their attention only as a result of disclosures made by one or more members of that group. The scale, frequency, nature and impact of the abuse to date, given its context, do not give rise to a sufficiently compelling case for interference.

The court also issued a summary of the decision. The British publication Conservative Women published an article highly critical of the decision.

Court Dismisses Challenges To Indiana's RFRA

Last week an Indiana state trial court judge ruled that three Christian educational and advocacy organizations lack standing to challenge the constitutionality of Indiana's version of the Religious Freedom Restoration Act that excludes from its coverage conduct that discriminates, among other things, on the basis of sexual orientation or gender identity. The court also held that plaintiffs' claims are not ripe for adjudication. WIBC News reports on the decision. Here is the complaint filed in the case.

Muslim Woman Sues Theater Over Pepperoni Pizza

Redondo Beach Patch reports on a lawsuit filed last week by an observant Muslim woman against a California movie theater chain over a pizza served at the theater. The paper recounts in part:

... [Plaintiff claims] she ordered a cheese pizza at a Redondo Beach theater in 2017 and instead was given pepperoni pizza, which she accidentally ate a portion of in the dark auditorium, violating her religious laws against consuming pork.

Kiara Rivers is suing American Multi-Cinema Inc., alleging religious discrimination, battery, intentional and negligent infliction of emotional distress and negligence....

"As a devout Muslim, (Rivers) considers the consumption of pork a violation of her duties as a Muslim and detrimental to her spiritual purity to the point that nothing can be done to restore her spiritual integrity," the suit states.

Presidential Proclamation On Thanksgiving Issued

Yesterday President Trump issued the Presidential Proclamation on Thanksgiving Day, 2019 declaring today a National Day of Thanksgiving. The Proclamation reads in part:

As we gather today with those we hold dear, let us give thanks to Almighty God for the many blessings we enjoy.  United together as one people, in gratitude for the freedoms and prosperity that thrive across our land, we acknowledge God as the source of all good gifts.  We ask Him for protection and wisdom and for opportunities this Thanksgiving to share with others some measure of what we have so providentially received.

Some Factional Church Claims Subject To Ecclesiastical Abstention Doctrine

In El Pescador Church, Inc. v. Ferrero, (TX App., Nov. 25, 2019), a Texas state appeals court held that the ecclesiastical abstention doctrine requires dismissal of a claim by one church faction that defendants wrongfully exercised control over property of the non-denominational church by changing banks, changing locks, taking control of the tithe and "subjecting any and all parities [sic] that disagree with these actions to intimidation, ridicule, and humiliation directed from the pulpit to the faithful." The court said in part:

[T]he evidence that the Church used to respond to the motion for summary judgment shows how its case is inextricably intertwined with ecclesiastical issues. That evidence consists [in part of] ... meeting minutes [which] state that "the congregation requested to place in discipline the Treasurer--Armando Oaxaca and for him to be destitute of the position of Treasurer." The minutes conclude that "Oaxaca can't function as Treasurer since he is not attending services or tithing to the congregation." Discipline of church members, particularly based on a scriptural concept such as tithing, are uniquely ecclesiastical....

The other claims--fraud and breach of fiduciary duty, equally implicate facts that are inextricably intertwined with internal church governance, the role of the pastor in church affairs, membership in the congregation, and statements of the pastor from the pulpit....

 Certain other claims however are not subject to dismissal:

The Church also sued Nunez for advice that he gave to Hector Ferrero and the congregation. He is alleged to have provided accounting and legal advice while not being licensed in those occupations. There is no allegation or evidence that his advice was ecclesiastical in nature, but rather the pleading alleges it is related to corporate governance under the corporation's articles of incorporation and Texas law. We view those claims differently from the allegations against the church officers and congregants.....

Imam's Interpretation of Halal Held Relevant To Sincerity of Inmate's Beliefs

In Russell v. Pallito, (D VT, Nov. 25, 2019), a Vermont federal district court refused to exclude the testimony of Taysir Al-khatib, the main imam of the Islamic Society of Vermont, who was to be presented as an expert on Islamic dietary laws.  The issue arose in a suit by Justin Russell, a Muslim pre-trial detainee who claimed that Department of Corrections policies fail to provide him and similarly situated inmates a diet that meets their religious requirements. According to the court:

Russell contends that Al-khatib’s expert testimony regarding Islamic dietary law is irrelevant because the proper inquiry for purposes of his claim is whether his beliefs regarding Islamic dietary law are sincerely held, not whether they are correct as a matter of religious doctrine....

More specifically, according to Russell, “[t]he question of whether Muslims may properly subsist on a kosher diet is essentially a question of religious interpretation,” and “the validity of such interpretation is not a fact of any consequence in determining the action, and is therefore irrelevant.”

The court went on to hold:

The Court recognizes Russell’s concern regarding conflation of the sincerity and verity of his religious beliefs, and remains cognizant of its duty to refrain from adjudicating intra-faith disputes.....

But that fact alone does not render Al-khatib’s testimony about Islamic dietary requirements irrelevant as a matter of law.... Rather, evidence that some members of Russell’s religious community hold a contrary interpretation of Islamic dietary requirements may be valuable to a jury in assessing the sincerity or religious nature of Russell’s beliefs as well as whether Defendants’ actions substantially burdened those beliefs.

Disabled Veteran Sues Over Personalized License Plate

A lawsuit was filed Monday in a Kentucky federal district court by Shaun DeWaters, a disabled Marine Corps combat veteran, against the Kentucky Transportation Cabinet. As reported by the Lexington Herald-Leader, the Kentucky Division of Motor Vehicle Licensing informed DeWaters that the personalized license plate which he has had for more than 12 years no longer complies with Kentucky law. According to the state, the plate which reads "INFDL" violates the ban on personalized plates that discriminate, represent a political belief or promote a specific faith, religion or anti-religion.  DeWaters says that troops in Iraq and Afghanistan took the label "Infidel" as a badge of honor after the enemy used the label for American troops. The lawsuit alleges that the ban on DeWaters license plate that was invoked when DeWaters attempted to transfer it to a new vehicle amounts to an infringement of 1st Amendment free speech rights.

Greek Orthodox Archdiocese Official Arrested On Wire Fraud Charges

The U.S. Attorney's Office for the Southern District of New York announced on Monday the arrest on wire fraud charges of Jerome Dimitriou, former Executive Director of an unnamed non-profit organization. The National Herald  identifies Dimitriou as former Executive Director of Administration of the Greek Orthodox Archdiocese of America for 19 years until he was fired in 2017. According to the SDNY release:

DIMITRIOU is charged with committing two embezzlement schemes:  In one, he allegedly embezzled more than $488,000 from Organization-1 by directing subordinates to issue him unauthorized excess salary payments; in the other, he allegedly charged hundreds of personal expenses to his Organization-1 credit card, without authorization, costing Organization-1 at least tens of thousands of dollars.